Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and Other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)

U.S. Department of Education

September 29, 2009

The U.S. Department of Education (Department) is issuing the following guidance to help prepare state educational agencies (SEAs), local educational agencies (LEAs), the Department of Interior’s Bureau of Indian Education (BIE),schools, and postsecondary institutions in the event of an outbreak of the H1N1 influenza virus during the 2009-2010 school year. In general, this document discusses waivers (and other forms of relief) from federal education requirements that may provide SEAs, LEAs, BIE, BIE-funded schools, postsecondary institutions, and other grantee and program participants with the operational flexibility necessary to efficiently close schools and otherwise respond to the administrative challenges presented by an H1N1 outbreak such as prolonged school closures, excessive absenteeism, or other disruptions in the regular delivery of educational services to students for a prolonged period of time. It is important to emphasize that this guidance addresses only federal education requirements, and does not address the applicability of state and local education requirements, because those requirements can only be addressed by state and local officials.

This document is organized into the following sections:

  • Part I – Elementary and secondary education issues;
  • Part II – Adult education and career and technical education programs;
  • Part III – Federal Student Aid (FSA) and other postsecondary education issues;
  • Part IV – Grant administration requirements;
  • Part V – Family Educational Rights and Privacy Act (FERPA) issues; and
  • Part VI – Distribution of flu vaccines at school facilities.

Each section addresses the implications of a prolonged school closure or other disruptions in the regular educational services to students, addresses legal questions that may arise for school administrators when faced with an H1N1 outbreak, and discusses generally the possibility of waiving requirements or finding other flexibility in federal education laws and regulations.

For specific guidance on how to best respond to an H1N1 outbreak during the 2009-2010 school year, please visit the Centers for Disease Control and Prevention’s (“CDC’s”) Web site:

  1. Elementary and Secondary Education Issues.

This section discusses potential legal issues that school administrators may face when considering whether to close a school or a district in response to an H1N1 outbreak and otherwise addresses disruption in educational services. Specifically, this section discusses waivers and other forms of relief from elementary and secondary (K-12) federal education requirements and other kinds of flexibility the Department may provide.

  1. Requirements under the Elementary and Secondary Education Act (“ESEA”).

A-1.In the event of an H1N1 outbreak, will the Department provide flexibility to SEAs and LEAs, BIE, and BIE-funded schools with regard to federal K-12 requirements?

Yes, to the extent permissible under law, the Department may provide SEAs, LEAs, BIE, and schools with as much flexibility as necessary to appropriately address the impact an H1N1 outbreak may have upon the normal functioning or delivery of educational services. Section 9401 of the ESEA (20 U.S.C. § 7861) permits the Secretary to grant waivers of many ESEA requirements, such as assessment, accountability, and reporting requirements, to SEAs, LEAs, BIE schools through their LEAs or BIE (as appropriate), and Native American tribes that receive ESEA funds and that request such waivers. Specifically, if warranted by an H1N1 outbreak that impedes functioning or delivery of educational services in a state, LEA or in a school, the Department may, upon request by SEAs, LEAs, BIE, BIE-funded schools, and Native American tribes, grant waivers of certain ESEA statutory and regulatory requirements, as it determines appropriate.

A-2.Who is responsible for requesting waivers (or other relief) related to federal K-12 requirements or deadlines?

While SEAs, LEAs, BIE, BIE-funded schools, and Native American tribes that receive funds under a program authorized by the ESEA can request waivers, the Department strongly encourages SEAs and BIE to coordinate waiver requests. SEAs and BIE should provide guidance and a process for LEAs and schools to work with the state or BIE, as appropriate, to request waivers from the Department. If an SEA or BIE believes a waiver may be needed, the SEA should immediately contact the Department to receive technical assistance in applying before the waiver is actually requested, if possible. An SEA should consider contacting the Department when contemplating a school closure, or when confronted with excessive absenteeism or other types of disruptions to the delivery of educational services. The Department may be able to assist the SEA or BIE in requesting a waiver.

As discussed in Section A of the Department’s Non-Regulatory Guidance on Title I, Part A Waivers (July 2009) (“Title I Waiver Guidance”), which may be accessed at if the Secretary grants an SEA’s or BIE’s request for a waiver, any LEA in the state or school funded by BIE interested in receiving the benefit of the waiver should then apply to the SEA or BIE respectively for approval to implement the waiver. The SEA or BIE should then review the LEA’s or school’s request in order to ensure that the request contains all required information, and that the LEA or BIE-funded school plans to implement the waiver in accordance with the conditions of the waiver. An SEA or BIE may not deny a request from an LEA or BIE-funded school to implement the waiver if the waiver request includes all of the required information and meets all conditions for the SEA or BIE’s waiver.

A-3.Does the ESEA allow for any flexibility without waiver approval?

Yes. Sections 1116(b)(7)(D) and 1116(c)(10)(F) of the ESEA contain “delay” provisions that provide flexibility to LEAs or schools when implementing the actions required for schools or LEAs in improvement, corrective action, or restructuring. These provisions provide flexibility to those LEAs and schools that do not make adequate yearly progress (AYP) because of “exceptional or uncontrollable circumstances,” such as an H1N1 outbreak that seriously disrupts the functioning or delivery of educational services. Specifically, the delay provision allows the LEA or school to delay implementing the school or LEA improvement requirements for a period of one year. For example, if a school fails to make AYP during the school year due to administrative challenges caused by an H1N1 outbreak, the school may “delay” meeting school improvement requirements for a period not to exceed one year.

Importantly, these delay provisions are self-executing; in other words, the SEA, BIE, LEA, or school does not have to obtain prior approval from the Department.

A-4.What is the general process for applying for a waiver of ESEA requirements?

To obtain awaiver, an SEA, LEA, BIE, or school (through its LEA or BIE), or Native American tribe must submit a request to the Assistant Secretary for Elementary and Secondary Education that contains the specific information identified in section 9401(b)of the ESEA. (As noted above, LEAs and schools do so through the SEA or BIE.) In general, an applicant should:

  • Identify the federal program(s) affected by the requested waiver;
  • List the statutory and/or regulatory requirements for which the applicant is seeking a waiver;
  • Outline the circumstances that the applicant believes warrant a waiver (e.g., the operational issues the applicant may be facing, such as excessive absenteeism, as a result of an influenza pandemic); and
  • Describe how schools will continue to provide assistance to the same populations served by programs for which waivers are requested during the period the waiver applies.

An applicant may also describe what may occur if it does not receive a waiver. Note that there is additional information described in section 9401(b) of the ESEA that must be included in a waiver request. The Department encourages any SEA, LEA, BIE, or school (through its LEA), or Native American tribe that intends to seek a waiver to review section 9401 of the ESEA, which may be accessed at the following Web address:

In addition, Section A of the Department’s Title I Waiver Guidance may be accessed at the following Web address:

Section A of the Title I Waiver Guidance sets forth general information and requirements for any waiver sought pursuant to the authority in section 9401 of the ESEA, including a waiver related to an outbreak of the H1N1 virus. The appendices to the Title I Waiver Guidance also contain several examples of requests for waivers that may be useful in applying for waivers due to an outbreak of the H1N1 virus.

Finally, if an ESEA waiver request is made and granted, the Department nonetheless expects schools to maximize student achievement during a disruption of educational services or a school closure. For recommendations on continuing learning during an H1N1 outbreak, please visit the following Web address:

Affected agencies or schools may also contact the Department’s Office of Elementary and Secondary Education with questions about ESEA waivers by calling (202) 401-0113.

A-5.If an LEA is required to provide equitable services to private school students under an ESEA program, during an H1N1 outbreak, how will LEAs communicate with officials of these private schools?

LEAs should, during the required consultation process with private school representatives or officials under such provisions in section 9501(c) of the ESEA, establish procedures and strategies, including a communication process, that will be implemented in the event of an H1N1 outbreak. Planning for this effort may require establishing a backup strategy that will be operational in the event of an H1N1 outbreak. LEAs should coordinate such planning with appropriate private school officials to make sure that they have access to information related to equitable services for their eligible students.

B.Requirements under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA).

Elementary and secondary schools must ensure equal access to educational opportunities for students with disabilities, and provide a free appropriate public education (“FAPE”). The following questions primarily address the obligations of, and best practices for, SEAs, LEAs, BIE, and schools with regard to these requirements when planning for an H1N1 outbreak.[1]

B-1.Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

The IDEA, Section 504, and the ADA do not specifically address a situation in which elementary and secondary schools would be closed for an extended period of time because of exceptional circumstances; however, LEAs must be sure not to discriminate on the basis of disability when providing educational services.

If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational services, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, however, a subsequent individualized determination is required to decide whether a student with a disability requires compensatory education to make up for any skills that may have been lost because of the school closure or because the student did not receive an educational benefit.

If an LEA continues to provide educational opportunities to the general student population, then it must ensure that students with disabilities also have equal access to the same opportunities and to the provision of FAPE. SEAs, LEAs, BIE, and schools (including schools operated by Native American tribes that are not funded by BIE) must ensure that, to the greatest extent possible, each student with a disability receives the special education and related services identified in the student’s individualized education program (IEP) developed under IDEA, or a plan developed under Section 504.

B-2.In the event of a school closure, how might educational services be provided to students with disabilities?

As part of their H1N1 planning, SEAs, LEAs, BIE, and BIE-funded schools must consider ways of ensuring that continuing education activities (i.e., services provided during a school closure) are accessible to students with disabilities. Technology provides unprecedented opportunities for all students, including students with disabilities, to have access to high-quality educational instruction during an H1N1 outbreak, especially when continuing education must be provided through distance learning. SEAs, LEAs, BIE, and BIE-funded schools should consider the accommodations (e.g., educational materials in accessible formats or through the use of auxiliary aids and services) that must be provided in order for a student with a disability to have an equal opportunity to participate in a distance learning program.

For recommendations on how to continue learning during a flu outbreak, please visit the following Web address:

B-3.What must a school do if it cannot provide services in accordance with a student’s IEP or Section 504 plan because of an H1N1 outbreak or if a student opts to stay home because the student is at high-risk for contracting the virus?

If a school continues to provide instruction to the general school population during an H1N1 outbreak, but is not able to provide services to a student with a disability in accordance with the student’s IEP, the student’s IEP team determines which services can be provided to best meet the student’s needs. The team may meet by teleconference or other means to determine if some, or all, of the identified services can be provided through alternate or additional methods such as through tutoring by phone, the Internet, or closed-circuit programming. Appropriate personnel under Section 504 must take similar actions regarding a student who has a Section 504 plan. Once school resumes, or the danger to a high-risk student has passed, a student’s IEP team, or appropriate personnel under Section 504, must determine whether, and to what extent, compensatory services are needed to ensure that the student receives educational benefit.

B-4.In the event that a school is closed, would an IEP team be required to meet? Would an LEA be required to conduct an evaluation of a student with a disability?

IEP teams would not be required to meet in person while schools are closed. IEP teams, however, must continue to work with parents and students with disabilities during such school closures, including conducting informal assessments (e.g., assessments developed by a student’s teacher) or formal assessments of the student, including parent surveys and standardized reports, and offer advice, as needed. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504.

B-5.What steps must be taken to serve a student with a disability who may have lost skills as a result of a prolonged absence from school?

The student’s IEP team (or appropriate personnel under Section 504) must make an individualized determination as to whether, and to what extent, it may be necessary to provide compensatory education to help the student regain skills that might have been lost during the period in which special education and related services were not provided.

If appropriate, compensatory education could be provided in a number of ways, such as providing extended school year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours. All such compensatory services must be directly linked to the denial of educational benefit, including any decline in the student’s skills that occurred as a result of a student not receiving services during an H1N1 outbreak.

The student’s IEP team also must review the student’s IEP and determine whether any other changes in the IEP are needed. An IEP team may consider using informal assessments to determine whether there have been changes in a student’s performance. If changes have occurred, the IEP team must determine whether changes are needed in the services and supports currently provided to the student.

B-6.If an LEA is required to provide services to parentally placed private school students with disabilities during an H1N1 outbreak, how will the LEA communicate with these private schools?

LEAs should, during the required consultation process with private school officials under section 612(a)(10)(A)(iii) of the IDEA, establish procedures and strategies, including a communication process, that will be implemented in the event of an H1N1 outbreak. Planning for this effort may require establishing a backup strategy that will be operational in the event of an H1N1 outbreak. LEAs should coordinate such planning with appropriate private school officials to make sure that they have access to information related to IDEA equitable services for their eligible students.

II. Adult Education and Career and Technical Education Programs.

A-1.May states receive a one-year waiver of their maintenance of effort (MOE) requirements for adult education and career and technical education programs if an outbreak of the H1N1 virus causes a disruption in services?

Yes. Section 241(b)(4) of the Adult Education and Family Literacy Act (AEFLA) authorizes the Secretary to waive a state’s MOE requirement due to exceptional or uncontrollable circumstances, “if the Secretary determines that a waiver would be equitable due to exceptional or uncontrollable circumstances, such as a natural disaster.” Similarly, section 311(b)(2) of the Carl D. Perkins Career and Technical Education Act of 2006 (Perkins IV) allows the Secretary to waive a state’s MOE requirement due to exceptional or uncontrollable circumstances (such as an H1N1 outbreak) that affect a state’s ability to meet such requirements. An H1N1 outbreak would meet the definition of an “exceptional or uncontrollable circumstance.”

A-2.May states and local recipients renegotiate their agreed-upon performance levels for adult and career and technical education programs if an H1N1 outbreak occurs?

Yes, if an H1N1 outbreak makes it excessively difficult to meet performance goals. Section 212(b)(3)(A)(vi) of the AEFLA and section 113(b)(3)(A)(vii) of Perkins IV provide the Secretary with the authority to renegotiate annual performance goals if certain unanticipated circumstances arise. For the Perkins IV program, see the Office of Vocational and Adult Education’s Questions and Answers Regarding Perkins IV Non-Regulatory Guidance, Version 3 (Questions B-40 through B-45):